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Unfair Dismissal Claim lodged 147 days late |
The Australian Industrial Relations Commission (AIRC) has granted an extension of time to allow an unfair dismissal claim lodged 147 days late. The employer had made "a reassessment of available duties [which] resulted in Management being unable to find a suitable position within the organisation." The employee, who had been on WorkCover weekly payments for over two years, sought advice about the termination of his employment, but claimed to have not been informed of the time limit on the lodgement of his appeal, primarily due to the fact that he was taking medication that affected his memory. |
The employee lodged an application under sec 170CE of the Workplace Relations Act 1996 ("WR Act") on 3 June 2004, 168 days after the date of termination of his employment. Unaware of the fact that sec 170CE(7) of the WR Act provides that applications are to be lodged within 21 days after the day of termination. The employer lodged a jurisdictional objection to the proceedings, based on that delay. |
The employee claimed that from 18 December 2003 he had contacted the General Manager of the employer as well as a number of advisors (including two firms of solicitors, the AIRC registry and Wageline) to find out how to contest the termination of his employment or obtain what he considered to be his due entitlements. |
Specifically, he asserted that, in January 2004, he had received solicitor's advice that the employer was entitled to dismiss him as he had been on WorkCover for over two years. Further, the employee stated that he then sought advice from another solicitor and was advised to lodge an unfair dismissal application at the conclusion of his WorkCover matter - that matter was resolved on 17 May 2004 and he lodged an application on 3 June 2004. The employee maintained that he was never informed, prior to lodging his application, that applications had to be lodged within 21 days of the termination of employment. |
The Commission allowed the appeal to proceed as the period of delay was not occasioned by the employee and he was "entitled to his 'day in court', or at least conciliation. Whether he is successful in that is entirely another matter." |
"I cannot help feeling that there is a real danger that we may become not only hostage to the advice provided by legal representatives, but further hostage to the account of their advice provided on the evidence. However, we must deal with evidence as presented by the parties, and this decision may be a reflection of the limitations of the evidence before me. I accept that it can be very difficult for a respondent employer to satisfactorily challenge evidence about advice allegedly given by representatives, particularly when they do not know who the advisors were and what their alleged advice is prior to a hearing, and that this could conceivably result in abuse of representative error arguments. I can only say that the Commission must be vigilant in such matters, and that the parties must take what steps they can to provide the Commission with an evidentiary base for finding abuse, if such exists." |
Note to Employers |
The 21-day period following termination of an employee during which an employee may apply for unfair dismissal relief may be, and frequently is, extended. As such, your company may have obligations beyond this date. |
peter.mcnamara@cml.com.au
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